Yuli Edelstein says he embodies the Knesset, can decide when a vote might be held to potentially replace him
The High Court of Justice’s decisions on Monday night and Wednesday ordering Knesset Speaker Yuli Edelstein to hold a vote on his replacement by Wednesday has raised a critical topic of debate in Israel: What is the Knesset?
Since last week, Edelstein and the Blue and White Party have fought over this question. It has wide-ranging implications regarding a resolution to the ongoing 16-month political deadlock.
Edelstein said, as speaker, he embodies the Knesset, and only he has the authority to decide when a vote could be held to potentially replace him.
Blue and White said whoever has a 61-vote majority in the Knesset makes the calls, is the Knesset, and the speaker is an empowered administrator who facilitates the will of that majority, with limited discretion.
What makes this question all the more complicated is that Israel’s founders, alongside former Knessets that passed the laws that make up the nation’s political system, never envisioned a situation in which one party would hold the Knesset and another party the Prime Minister’s Office, such as often occurs in the US, where one party holds the White House and the other the Congress.
The foundation of Israel’s parliamentary democracy is that the Knesset and the Prime Minister’s Office are supposed to be held by the same party.
But no one envisioned that a prime minister would seek to continue serving under indictment, after three rounds of elections and with a criminal trial about to begin. Benjamin Netanyahu has shown that this is possible.
The two sides are also at war over what the coronavirus crisis means for Israeli democracy.
Netanyahu and his Likud Party believe the prime minister and the rest of the executive branch should have extra leeway to manage the crisis with less Knesset oversight, which would slow down efforts to save lives, they say.
Blue and White believes greater Knesset oversight is required because the executive branch is issuing new orders almost every day that infringe on civil liberties. The Knesset, Blue and White argues, is needed to evaluate what steps are truly necessary to save lives, what are not and what might be politicization (i.e., steps that seem to be aimed at delaying Netanyahu’s trial).
The High Court mostly took Blue and White’s side in the current crisis, declaring that the Knesset is whatever a 61-MK majority says it is, even if it is against the will of the speaker.
Legal scholars and long-term observers say this decision was actually more middle-of-theroad than it appeared, as the High Court circumscribed its ruling to the situation of a transitional Knesset speaker.
In other words, it said Edelstein might have been right, and some future speaker might win such a battle – if already sworn in again and validated at the start of a Knesset that has been newly elected.
However, since Edelstein was trying to hold on to his post (he resigned on Wednesday in dramatic fashion) based on prior election results and not the results of the most recent election on March 2, the High Court said his discretion was far more limited.
IT DID not need to end like this with all-out brinkmanship. The High Court gave Edelstein a number of hints that he should have understood to mean he was going to lose.
The first was on Sunday, when all five justices expressed disappointment with Edelstein’s refusal to convene a vote. But they held back from issuing a final decision: basically a move to give the outgoing speaker time to understand what he needed to do on his own.
The second was that once they issued a “decision” at 1:30 p.m. on Monday, it was in the bizarre form of a question: Would Edelstein agree to hold a vote by Wednesday?
On the one hand, the question was a form of pressure and an ultimatum, which is how Edelstein took it and referred to it.
On the other hand, courts usually do not ask questions or for permission. They simply decide and issue orders.
This question/decision was sort of like the court trying to test how Edelstein might respond to different scenarios so that it would not get too far ahead of itself.
This was the sign of a court that wanted to avoid a direct confrontation as much as possible.
THEN, AFTER setting a threehour deadline for Edelstein to respond, the court agreed to his request for an extension to 9:00 p.m., giving him double the time.
Normally, a four-hour extension is meaningless, but here is showed the court blinking again when tested by Edelstein.
The High Court was never going to let Edelstein drag the vote past the 28 days during which Benny Gantz holds the mandate to form a government.
At the same time, it probably would have delayed issuing a ruling even more, or might have given Edelstein some type of extension so that he could take a crack at compromising between Likud and Blue and White, while setting a clear deadline to not give him unlimited discretion as Knesset speaker.
However, Edelstein would not commit to a one- or even twoweek deadline.
He justified his delay of the vote with some serious legal arguments, noting how Knesset legal adviser Eyal Yinon believes Edelstein has the discretion to delay and that several past speakers had not been picked for weeks or even a month after a new Knesset was sworn in following an election.
The High Court responded that these were exceptions and that none of them were cases when the speaker appeared to be trying to thwart the will of a 61-MK majority, which had made its intention clear.
Depending on what comes next, the High Court decision’s Monday and its decisions Wednesday, which at press time looked like they would lead to a vote to replace Edelstein managed by Amir Peretz late Wednesday night or early Thursday, will likely either have saved its role as umpire of a tough constitutional crisis or ended it.
If a coalition is assembled without a fourth election, and 61 MKs want to preserve the court’s constitutional role, its decision will have saved that role.
But if a 61-MK majority emerges that wants to avenge Edelstein, this may be the last time the High Court has the power to render such a blockbuster decision.
Edelstein’s decision to resign, rather than himself having to hold a vote on Wednesday, did not change this dynamic. It merely prolonged the conflict between the High Court and his supporters, and increased the potential zero-sum destructive impact of the conflict regardless of who “wins.”